TB5-07122

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-07122 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 08, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Steven Beiles Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), who is a citizen of Ukraine, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal, however he is not requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking that the RAD find him to be a Convention refugee or a person in need of protection, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. Background [3] The Appellant's claim is based on his alleged Roma ethnicity. He arrived in Canada on June 17, 2013 as a visitor and made a refugee claim on April 22, 2015. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express Statutory Conditions [4] Section 110(4) of the IRPA provides that an Appellant may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [5] The following new evidence has been submitted to the RAD: * Fire report, together with a photograph in connection with a fire to the Appellant's home which occurred on XXXX XXXX, 2015. * Letter from C.N. Immigration Agency, dated July 15, 2015 in response to a query submitted by the Appellant on May 4, 2015 [6] The foregoing evidence is admitted by the RAD to be assessed by the RPD when considering the merits of this claim. ROLE OF THE RAD [7] The RAD has taken guidance from the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error. SUBMISSIONS BY COUNSEL * Did the absence of a transcript of the Appellant's RPD hearing result in a denial of natural justice? RAD'S FINDINGS [8] The Appellant's counsel retained an individual to prepare a transcript of the Appellant's RPD hearing. Unfortunately, upon listening to the CD, it was discovered that it was largely inaudible, due to loud static. Since the recording was inaudible, it was, therefore, impossible to prepare a transcript. [9] The RAD has attempted to review the audio recording, and concurs with Appellant's counsel that the Appellant cannot be heard due to the defective CD. While in some cases, this would not affect the ability to conduct an independent assessment of the entire record, in the particular circumstances of this claim, the RAD concurs that to do so would be a denial of natural justice. The RAD concludes this based on the determinative issue being that of credibility. [10] Accordingly, pursuant to ss. 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. This appeal is allowed to ensure that the audio recording of the proceedings is audible for both the Appellant and the RAD. (signed) "Roslyn Ahara" Roslyn Ahara September 08, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07122